Hobbs v. Warner

2020 BCSC 1180 Hobbs v. Warner

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hobbs v. Warner, 2020 BCSC 1180 Date: 20200811 Docket: S195175 Registry: Vancouver Between: Kevin Hobbs, Lisa Cheng and Vanbex Group Inc. Plaintiffs And Kipling Warner Defendant Before: The Honourable Madam Justice Donegan Direction on Full Indemnity Costs Assessment Appearing on his own behalf and on behalf of Vanbex Group Inc.: K. Hobbs No one appearing on behalf of the Plaintiff, Lisa Cheng: Counsel for the Defendant: J.V. Payne Written Submissions Received from the Defendant: May 5, 2020 Written Submissions Received from the Plaintiffs: June 1, 2020 Place and Date of Judgment: Vancouver, B.C. August 11, 2020

INTRODUCTION [1] Lawsuits brought for an improper purpose, namely to silence expression and financially punish one's critics, have come to be known as strategic lawsuits against public participation, or by the acronym "SLAPP". These types of lawsuits have evoked various legislative responses, sometimes referred to as anti-SLAPP legislation: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 [Pointes Protection] at paras. 3-4. The Protection of Public Participation Act, S.B.C. 2019, c. 3 [PPPA] is British Columbia's anti-SLAPP legislation. It came into force on March 25, 2019. [2] Section 4 of the PPPA creates a pre-trial procedure allowing a defendant to apply to the court quickly and early in a proceeding for an order dismissing a claim arising out of an expression by him or her on a matter of public interest. If successful in having the claim dismissed, s. 7 of the PPPA entitles the applicant to costs on the application and in the proceeding, assessed as costs on a full indemnity basis unless the court considers that assessment inappropriate in the circumstances. [3] On December 18, 2019, I dismissed the plaintiffs' defamation claim under s. 4 of the PPPA and awarded costs to the defendant, to be assessed as costs on a full indemnity basis in accordance with s.

7. My Reasons for Judgment are indexed at 2019 BCSC 2196 (the "Reasons"). My reasons for the cost award can be found at paras. 226-230. [4] The parties disagreed on the approach and powers of the registrar on an assessment of full indemnity costs, so the registrar referred the matter back to me. Mr. Warner asks that I assess costs on a summary basis on the basis of the written evidence (his counsel's affidavit) and submissions, in the amount of $134,372.98. Vanbex Group Inc. ("Vanbex") and Mr. Hobbs (collectively, the "plaintiffs") take issue with the reasonableness of the bill and take the position that a full indemnity costs award under the PPPA should not be assessed on the summary basis the defendant seeks. They say the assessment should occur in the same manner as any other costs award and ask that the matter be referred back to the registrar for that assessment to occur. Ms. Cheng, the other plaintiff, has opted not to participate in this aspect of the litigation.

BACKGROUND [5] I outlined the facts of this case in detail in the Reasons. This decision should be read in conjunction with the Reasons, but for context I will provide a brief overview here. [6] The defendant is a senior software engineer who worked for Vanbex for a few months in 2016. After leaving the company, he discovered some information about Vanbex and Mr. Hobbs which caused him to suspect that Mr. Hobbs may be using Vanbex for a criminal purpose. In April 2017, Mr. Warner emailed a member of the Vancouver Police Department describing his suspicions and attaching related documentation. Mr. Warner later spoke to investigators with the British Columbia Securities Commission and the RCMP. [7] On March 14, 2019, the Director of Civil Forfeiture commenced an action against Mr. Hobbs and Ms. Cheng seeking forfeiture of certain of their assets. Preservation orders were made. When news of the civil forfeiture action against them broke, the plaintiffs blamed Mr. Warner and commenced this defamation action on May 1, 2019. [8] On May 2, 2019, Mr. Warner retained Payne Litigation to "draft, file and argue an application to dismiss" the proceeding. Mr. Payne filed Mr. Warner's application under s. 4 of the PPPA on May 14, 2019. Prior to the hearing of the application and in accordance with s. 9(5) and (6) of the PPPA, the central parties were cross-examined on their affidavits

out-of-court over the course of four days in June and July 2019. As required by the legislation, I heard the defendant's application as soon as practicable, over six days in July and August 2019. [9] In brief, I found the defendant had met the "threshold hurdle" under s. 4(1) of the PPPA and demonstrated that the litigation arose out of Mr. Warner's expression on a matter relating to public interest. I then found the plaintiffs had met the "merits-based" hurdle under s. 4(2)(a) and established their defamation claim was legally tenable and that there were reasonable grounds to believe Mr. Warner had no valid defences. However, I found that the plaintiffs had failed to meet the "public interest" hurdle; the plaintiffs did not satisfy me that the harm they suffered or may suffer by Mr. Warner's expression was serious enough that the public interest in continuing the proceeding outweighed the public interest in protecting Mr. Warner's expression. Accordingly, I dismissed the plaintiffs' claim. [10] In accordance with the presumptive costs provision in s. 7, I awarded Mr. Warner costs on the application and in the proceeding, assessed as costs on a full indemnity basis. [11] Mr. Warner also brought an application for damages under s. 8 of the PPPA. Section 8 gives the court discretion to award damages it considers appropriate against a plaintiff if it finds the plaintiff brought

the proceedings in bad faith or for an improper purpose. I found that Mr. Warner did not provide evidence of harm and that this was not one of those "small subset of SLAPP cases which go beyond simply reflecting an effort to limit expression" and include "active efforts to intimidate or inflict harm on the defendant" (para. 245 of the Reasons). I declined to award damages. [12] On December 19, 2019, the day after the Reasons were released, Mr. Warner sent Payne Litigation's bill as of December 18, 2019 to the plaintiffs. [13] On March 12, 2020, the parties appeared before a registrar for a pre-hearing conference on the assessment of the full indemnity costs award. They disagreed on the proper approach and powers of the registrar on such an assessment, so the registrar ordered the settlement of the costs order be referred back to me for "submissions from counsel that will include the proper procedure for the determination of full indemnity costs under the applicable statute". [14] As a result of the court's temporary suspension of regular operations, I conducted a telephone conference with the parties in April and directed them to provide written submissions on the topic, which they have now done.

POSITIONS OF THE PARTIES [15] Mr. Warner asks me, pursuant to Rule 14-1(15) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules], to assess costs in a summary manner, on the basis of his counsel's affidavit and submissions. Mr. Payne's affidavit provides evidence about the fees and expenses his law firm charged Mr. Warner for the legal services provided in this action. [16] Mr. Warner relies heavily on the Ontario experience in support of his position. In that province, under legislation upon which the PPPA is modelled, application judges frequently conduct summary costs assessments on the basis of written submissions and a simple review of the reasonableness of fees. [17] Mr. Warner recognizes that in British Columbia the registrar is typically the judicial officer who is to assess costs, but he submits that this is a compelling case in which I ought to exercise my discretion to conduct the assessment in a summary manner on the basis of his counsel's affidavit and submissions. He argues that to do so would not only be consistent with the practice in Ontario, it would be consistent with the purposes of the PPPA and with the requirement that dismissal applications be heard "as soon as practicable". Furthermore, he says that such an approach would reflect the unique context of the PPPA and serve to promote the principles of proportionality and economic efficiency. As the

assessment is to be conducted on a subjective basis, he submits that I am the ideal judicial officer to assess costs in this case. [18] The plaintiffs take the opposite view. They argue that full indemnity costs awards under the PPPA must be assessed in the same manner as any other costs award in British Columbia. While they accept the court has discretion to conduct such an assessment and that some anti-SLAPP cases may indeed deserve a summary assessment by the application judge, they say this is not one of those cases. [19] Mr. Hobbs and Vanbex argue that this is not a typical "David vs. Goliath" SLAPP suit that requires sanctioning through a summary assessment of a high costs award. They emphasize that full indemnity costs under the PPPA is the rule rather than the traditional exception and say that costs ought to be assessed in the ordinary manner by the registrar, rather than as an exceptional circumstance requiring summary assessment by the application judge. [20] The plaintiffs further submit that to conduct a summary assessment for such a high bill in the manner proposed by the defendant would be contrary to the interests of justice and would undermine principles of fairness and reasonableness. They view the bill as excessive, unreasonable and unfair. They identify several difficulties with the bill that, they argue, can only be adequately addressed through a

registrar's assessment. [21] The plaintiffs also ask me to rely on the Ontario experience where full indemnity costs awards under their anti-SLAPP legislation are routinely summarily assessed by the application judge and only referred to the registrar in exceptional circumstances. Such a practice is the norm and therefore consistent with any other routine costs award in Ontario. They emphasize that the practice is much different in our province, where costs are routinely assessed by the registrar. Consistent with our practice, the plaintiffs say that the award in this case ought to be assessed by the judicial officer with experience in conducting such assessment, the registrar. [22] The manner in which the parties have framed this matter requires me to answer two questions. The first is a general question regarding how costs awards under the PPPA are to be assessed. The second, specific to this case, is whether I ought to exercise my discretion to assess this award.

HOW COSTS AWARDS UNDER THE PPPA ARE TO BE ASSESSED [23] To answer this question, I will begin with a general overview of the law of costs in British Columbia. Costs Awards Under the Rules Generally [24] Under the Rules, only two categories of costs are recognized - party and party costs and special costs: Rule 14-1. [25] Party and party costs are the default option. They are to be awarded to a successful party unless the court orders otherwise: Rule 14-1(1). This category of cost award is designed to provide only partial indemnity to the successful party and is intended to allocate the high cost of litigation fairly between the parties. This award is to be assessed in accordance with the tariff in Appendix B of the Rules: Tanious v. The Empire Life Insurance Company, 2019 BCCA 329 at paras. 46-47. [26] Special costs serve different functions than party and party costs. They are intended to address the result and the conduct of the parties in the course of the litigation. Special costs are generally awarded where there has been some form of reprehensible conduct. While their primary purpose is to censure litigation misconduct, there can be exceptional circumstances where they may be awarded for non-punitive purposes. Special costs are not a substitute for damages or to be conflated with damages for mental distress, punitive damages or contractual costs: Tanious at paras.

49-54. [27] Special costs are meant to provide a much higher indemnity than ordinary party and party costs. While there may be a close relationship between actual legal fees and special costs, they are not necessarily the same. Actual legal fees that the successful counsel would recover from his or her client are assessed through a review of a lawyer's bill under the Legal Profession Act, S.B.C. 1998, c. 9 [LPA]. Ordinarily, a bill taxed as special costs will be less than a bill taxed under the LPA: West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110 at para.

71. Assessment [28] Rule 14-1(4) specifies that the judicial officer before whom costs are assessed is a registrar. [29] Rules 14-1(2) and (3) set out how a registrar is to conduct these assessments: (2) On an assessment of party and party costs under Appendix B, a registrar must (a) allow those fees under Appendix B that were proper or reasonably necessary to conduct the proceeding, and (b) consider Rule 1-3 and any case plan order. (3) On an assessment of special costs, a registrar must (a) allow those fees that were proper or reasonably necessary to conduct the proceeding, and (b) consider all of the circumstances, including the following: (i) the complexity of the proceeding and the difficulty or the novelty of the issues involved; (ii) the skill, specialized knowledge and responsibility required of the lawyer; (iii) the amount involved in the proceeding; (iv) the time reasonably spent in conducting the proceeding; (v) the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the proceeding; (vi) the importance of the proceeding to the party whose bill is being assessed, and the result obtained; (vii) the benefit to the party whose bill is being assessed of the services rendered by the lawyer; (viii) Rule 1-3 and any case plan order. [30] While the judicial officer conducting the assessment in British Columbia is to be the registrar,

Rule 14-1(15) has expanded the role of the court. It gives the judge who awards costs of a proceeding the power to fix the amount of costs, including the amount of disbursements. It provides: (15) The court may award costs (a) of a proceeding, (b) that relate to some particular application, step or matter in or related to the proceeding, or (c) except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements. [31] While this subrule grants the court the authority to assess the amount of costs, the Rules are silent as to when and how a judge should exercise this authority: Gichuru v. Smith, 2014 BCCA 414 at para. 99. [32] Whether a judge should determine the quantum of costs is a matter of judicial discretion. This discretion must be exercised sparingly and in light of Rule 14-1(2) for party and party costs and Rule 14-1(3) for special costs: Gichuru at para. 106. [33] The Court in Gichuru considered the inter-related questions of when and how a court ought to exercise this discretion. Justices Harris and Goepel first emphasized that in exercising the power to fix costs, a judge cannot act arbitrarily or capriciously. Costs decisions are governed by a wide measure of discretion and must be exercised judicially: para. 100. [34] The

Court noted at para. 106 that there is good reason for the court to exercise its discretion to assess costs sparingly; the registrar is usually in the best position to determine if fees billed by a lawyer are reasonable. The Court held that the "registrar's extensive knowledge and experience assessing legal bills is seldom matched by that of a trial judge". However, the Court recognized that it may be appropriate for a judge to assess costs if the judge is "intimately familiar" with the litigation, or the time and expense of a registrar's hearing cannot be justified: para.

107. The fact the judge heard the trial does not necessarily lead to the conclusion that the assessment should be done summarily, or that the judge should engage in the assessment of costs. As the Court in Gichuru noted, "time the judge spends on the assessment is time the judge does not have for other matters": para. 108. [35] Although assessment of costs by a judge has been done in a summary manner, the Rules do not require a judge to assess costs summarily. In many circumstances, the rules of natural justice may dictate that a summary proceeding is not appropriate. The Court in Gichuru held at para. 103: [103] Absent consent, natural justice requires a certain level of procedural fairness. In the typical case, this means providing an opportunity for the party against whom costs are being awarded to test the reasonableness of the fees underlying the award, which reflects the basic costs principle that cost awards are meant to be an indemnity for fees incurred rather than to provide a windfall. Full Indemnity Costs Awards Generally [36] Full indemnity costs are not available to a court under the Rules. They are, however, awarded on occasion where, for example, there is contractual entitlement to such an award (see, for example: Eisler Estate v. GWR Resources Inc., 2020 BCSC 562) or, as here, there is statutory entitlement. [37] Full indemnity costs are sometimes referred to as solicitor-and-own client costs. They are distinct from special costs: West Van Holdings Ltd. v. Economical at para.

75. Although the words "full indemnity" suggest complete recovery of legal fees, their recovery is subject to review to ensure their reasonableness: Wanson (Bristol) Development Ltd. v. Sahba, 2019 BCCA 459 (Registrar) at para. 12; MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874 at para.

92. Or, as the court in 1353837 Ontario Inc. v. Pigozzo, 2019 ONSC 4778 put it, a full indemnity award does not constitute a "blank cheque" that will ensure recovery of all legal fees and disbursements incurred by the successful party: para.

19. Assessment [38] Of course, the Rules do not set out how a registrar is to assess full indemnity costs. However, the framework and factors to be considered on such an assessment have developed through the jurisprudence. Registrar Outerbridge had occasion to discuss this topic in two recent decisions - Pallot v. Douglas, 2018 BCCA 315 and Wanson. [39] In Pallot, the Court observed that the assessment of full indemnity costs involves a process that resembles an assessment under the LPA. Registrar Outerbridge held: [11] In my view, the term "full indemnity" or "solicitor and own client costs" does not automatically translate into the complete recovery of the charges made with little to no oversight as suggested by Ms. Douglas. As the Ontario Court of Appeal wrote in MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874 at para 92 when awarding full indemnity costs, "[a]t a minimum, such costs are to be reviewed by the court and are limited to those that have been reasonably incurred." This is consistent with the reasoning in Bradshaw that the process resembles an assessment under the Legal Profession Act. [40] In Wanson, Registrar Outerbridge discussed the analysis for the assessment of full indemnity costs further by contrasting it with the analysis for the assessment of special costs. Registrar Outerbridge explained: [13] The main difference between "full

indemnity" costs and "special costs" is the relationship informing the analysis. Like ordinary costs, special costs are a form of party and party costs -- that is, they are assessed with a view to the relationship between the parties. Under the factors provided in Rule 61(2), the question on an assessment of special costs is framed objectively: what ought to be the proper and reasonable amount paid by the losing party to the successful party? The bills of the solicitor are evidence of what could be objectively reasonable. [14] In contrast, "full indemnity" costs are described more accurately, in my view, by the synonym "solicitor and own client" costs. The reason is because the analysis is focused on the relationship between the solicitor and their own client, rather than as between the parties. When assessing these costs the question is subjective: examining the bills of the solicitor in this matter, are the charges reasonable in the circumstances? [15] The difference is explained in Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 at 319 (S.C.), aff'd [1992] B.C.J. No. 1657 (C.A.): As I understand the notion of Special Costs under Rule 57(3), they are meant to provide a much higher indemnity than Ordinary Costs where the circumstances warrant. They are assessed under paragraphs (a) to (g) of Rule 57 with a view to the relationship between the

successful party and his or her own solicitor. But they are not necessarily the fees that the successful solicitor would recover from his or her client. Those fees arise from a review of a solicitor's bill under the Legal Profession Act, S.B.C. 1987 ch. 25, Part 10, as amended by the Justice Reform Statutes Amendment Act, 1989, s. 26; in force 1 September 1990; B.C. Reg. 267/90. Instead, Special Costs are the fees that a reasonable client would pay a reasonably competent solicitor for performing the work described in the bill. On the other hand, fees payable by the client to the solicitor pursuant to a bill taxed under the Legal Profession Act represent fees for work done by that solicitor for that client. In the usual course of events, a bill taxed as Special Costs will be less than a bill taxed under the Legal Profession Act. This is because Special Costs still fall under the category of party and party costs, whereas fees due under the Legal Profession Act are assessed in a similar way to the old method of solicitor and own client costs. A taxation of Special Costs is objective in nature while a taxation under the Legal Profession Act is subjective [ ] [Emphasis added] [41] In both cases, Registrar Outerbridge had regard to the non-exhaustive list of factors in s. 71 of the LPA as a guide in the consideration of what was reasonable in the circumstances. In Wanson, he

wrote: [17] In addition to the legal principles summarized above, as I did in Pallot, I would have regard to the factors in s. 71 of the Legal Profession Act, S.B.C. 1998, c. 9 as a guide in the consideration of what is reasonable: a) the complexity, difficulty or novelty of the issues involved, b) the skill, specialized knowledge and responsibility required of the lawyer, c) the lawyer's character and standing in the profession, d) the amount involved, e) the time reasonably spent, f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable, g) the importance of the matter to the client whose bill is being reviewed, and h) the result obtained. [42] To summarize, when assessing full indemnity costs the question is subjective: examining the bills of the solicitor in this matter, are the charges reasonable in the circumstances? As a guide in the consideration of what is reasonable in the circumstances, regard may be had to the non-exhaustive factors identified in s. 71 of the LPA. [43] To this I would add that although the reasonableness analysis for full indemnity costs is focused on the relationship between the solicitor and their own client, rather than as between the parties, this does not mean that principles of natural justice and procedural fairness somehow do not apply to the assessment. Full indemnity awards do not entitle the successful party to whatever costs he or she incurred. The quantum must still be fair, reasonable and proportionate: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128 at para.

42. As with costs awards under the Rules, I am of the view that natural justice requires a level of procedural fairness to ensure that full indemnity costs awards cover fees incurred and do not provide a windfall to the recipient (Gichuru at para. 103). [44] The parties agree that, like other costs awards, the court that makes a full indemnity costs award has the jurisdiction to fix the amount. Although the Court in Gichuru did not specifically include this category of costs award when discussing when and how a judge ought to exercise his or her discretion to conduct the assessment, I see no principled basis upon which the same general considerations should not apply to full indemnity costs awards as well. [45] I turn now to costs awards under the PPPA. Costs Awards Under the PPPA Generally [46] Section 7 of the PPPA entitles an applicant who succeeds in having a claim dismissed to full indemnity costs on the application and in the proceeding, unless the court considers that assessment inappropriate in the circumstances. [47] As I discussed in the Reasons, the PPPA, including its costs provision, is modelled closely on Ontario's anti-SLAPP legislation, found in amendments to the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43 [CJA]. The PPPA's purposes, and the manner in which its provisions seek to achieve those purposes, should be viewed in the same way as expressly

articulated in the CJA, and as interpreted by the Ontario Court of Appeal in Pointes Protection and other concurrently released decisions. [48] Section 137.1(1) of the CJA sets out the following purposes of the legislation: (a) to encourage individuals to express themselves on matters of public interest; (b) to promote broad participation in debates on matters of public interest; (c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. [49] In other words, the purposes of the CJA and the PPPA are to promote free expression on matters of public interest and discourage litigation that unduly limits this expression: Pointes Protection at para. 37. [50] The pre-trial remedies created by s. 4 of the PPPA and by s. 137.1 of the CJA seek to achieve these purposes by providing a judicial screening or triage device designed to eliminate certain claims at an early stage of the litigation process: Pointes Protection at para.

73. The legislation does so by first distinguishing between claims that arise from an expression that relates to a matter of public interest and other claims, and second, by providing for the early and inexpensive dismissal of claims based on expressions relating to matters of public interest, either because those claims lack sufficient merit to proceed, or because the public interest is, on balance, not served by allowing the action to proceed to an adjudication on the full merits: Pointes Protection at para. 48. [51] Both the PPPA and the CJA provide for "full indemnity costs" in the case of a dismissal. The provisions are nearly identical. [52] Section 7(1) of the PPPA provides: 7(1) If the court makes a dismissal order under section 4, the applicant is entitled to costs on the application and in the proceeding, assessed as costs on a full indemnity basis unless the court considers that assessment inappropriate in the circumstances. [53] Section 137.1(7) of the CJA provides: 137.1(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. [54] These provisions upend the traditional costs starting point found in both provinces, making full, rather than partial, indemnity the presumptive

position. This is consistent with the purposes of the PPPA and the CJA. As the Ontario Court of Appeal in Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686 [Rabidoux] held, such a starting point for costs consequences is intended to serve as a strong deterrent to SLAPP suits and encourage defendants to seek the quick termination of that type of litigation. The provisions do, however, allow for the court to make a different costs award if it considers a full indemnity award inappropriate in the circumstances of the case: paras. 60-62. [55] In exercising the discretion to make a costs award other than full indemnity, the Court in Rabidoux held that the judge should consider factors that guide the exercise of discretion in other civil proceedings, as well as other factors, such as any determination made about the merits of the case, any findings made as to the motivations of the parties and the manner in which the parties have conducted the proceedings: paras. 63 and 67. [56] As the Reasons disclose, I considered those factors and concluded that a full indemnity award was appropriate in the circumstances of this case. Assessment [57] This brings me to answer to the first question. [58] In short, I am of the view that the assessment of a costs award made pursuant to the PPPA should be treated in the same manner as any other cost award in British Columbia. [59] As the PPPA

is modelled on the Ontario legislation, I find the approach by the Ontario courts on the issue of the assessment of costs in this context persuasive. Such an approach favours the plaintiffs' position on this issue. [60] In Ontario, costs in anti-SLAPP cases (full indemnity or otherwise) are assessed and fixed as they would be in any other context in that province, in a summary fashion by the motion judge. Although summary in nature, the "quantum must still be fair and reasonable for what was involved in the particular proceeding [and] proportionate to the importance and complexity of the issues and to the amount involved ": United Soils Management Ltd. at para. 42. [61] There are several examples in the Ontario jurisprudence where motion judges summarily assessed costs in anti-SLAPP dismissal cases, including Joshi v. Allstate Insurance Company of Canada, 2019 ONSC 5934, a case referred to by Mr. Warner. In that case, the motion judge awarded approximately $95,000.00 in full indemnity costs, assessed on a summary basis on the submissions of counsel. Another example can be found in United Soils Management Ltd. v. Mohammed, 2017 ONSC 6350 (costs endorsement), leave to appeal ref'd 2019 ONCA 128. There, the motion judge summarily assessed a full indemnity cost award in the amount of $122,000.00 based on the written submissions of counsel. [62] In considering what guidance, if any,

can be taken from the Ontario experience, it is important to understand the similarities and differences in the law and procedure surrounding costs in the two jurisdictions. [63] Describing them as similar but not identical, our Court of Appeal briefly discussed and compared the two regimes in West Van Holdings Ltd. One difference, the Court explained, is that the Ontario Rules of Civil Procedure, R.R.O 1990, Reg. 194 [Ontario Rules] provide for three levels of costs: partial indemnity, substantial indemnity and full indemnity. Our Rules only provide for partial indemnity and special costs. Special costs do not necessarily lead to full indemnity. One similarity is that the default rule in both provinces is that the successful party is entitled to costs on a partial indemnity scale: paras. 74-76. [64] Of significance here though, the procedure for assessing costs in the two jurisdictions differs significantly. While costs are generally assessed by the registrar in British Columbia, there is a presumption in Ontario that costs are to be fixed by the court, unless exceptional circumstances exist: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.) at para. 15. [65] In Ontario, the authority for awarding costs against a party originates in s. 131 of the CJA, which provides: Costs 131 (1) Subject to the provisions of an Act or rules of

court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. [66] Costs are further governed by Rule 57 of the Ontario Rules. [67] Rule 57.01(1) of the sets out a number of factors for the court to consider when exercising its discretion under s. 131 of the CJA. These include: (0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (a) the amount claimed and the amount recovered in the proceeding; (b) the apportionment of liability; (c) the complexity of the proceeding; (d) the importance of the issues; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution; (g) a party's denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate

proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and (i) any other matter relevant to the question of costs. [68] Rule 57.01(3) provides that when the court awards costs, it must fix them in accordance with the factors set out in Rule 57.01(1) and the tariffs. Rule 57.01(4) provides that nothing in Rule 57.01 affects the authority of the court under s. 131 of the CJA to, among other things, award costs in an amount that represents full indemnity. [69] Rule 57.01(7) sets out the process for fixing costs by the court. The court is to "devise and adopt the simplest, least expensive and most expeditious process for fixing costs", including by way of written submissions. [70] In an "exceptional case", an Ontario court is permitted to refer costs for assessment under Rule 58: Rule 57.01(3.1). An assessment under Rule 58 is to be conducted by an "assessment officer". [71] In Boucher, the Ontario Court of Appeal addressed the meaning of an "exceptional case" in this context: [15] The motions judge concluded, correctly in my view, that there is now a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case. The appellants submitted to the motions court and to this court

that the case at bar is such a case. The motions judge, in deciding that this was not an exceptional case, said: Only if the assessment process will be more suited to effect procedural and substantive justice should the Court refer the matter for assessment. There must be some element to the case that is out of the ordinary or unusual that would warrant deviating from the presumption that costs are to be fixed. Neither complex litigation nor significant amounts in legal fees will be enough for a case to be exceptional. The judge should be able to fix costs with a reasonable review of the work completed without having to scrutinize each and every docket. If that type of scrutinizing analysis is required, then perhaps, the matter would fall within the exception and be referred to assessment: BNY Financial Corp.-Canada v. National Automotive Warehousing Inc., [1999] O.J. No. 1273 (Commercial List, Gen. Div.) (BNY Financial). [16] I agree with the motions judge that if a judge is able to effect procedural and substantive justice in fixing costs, she ought to do so. See Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 at 245 (C.A.) per Morden A.C.J.O. [72] In summary, unlike in British Columbia, the assessment and fixing of partial, substantial and full indemnity costs by the judge who made the award in Ontario is the rule, rather than the exception. Courts in that province are

required to follow that general rule and undertake the same type of analysis when fixing costs under its anti-SLAPP legislation. It is, therefore, unsurprising that full indemnity costs in Ontario's anti-SLAPP dismissal cases are commonly assessed on a summary basis by the motion judge. [73] As is done in Ontario, I conclude that costs awards under the PPPA should be assessed as they would be in any other context in British Columbia.

EXERCISE OF DISCRETION IN THIS CASE [74] Informed by these principles and for reasons I will now explain, I decline to exercise my discretion to assess costs summarily in the manner proposed by Mr. Warner, or at all. That is not to say that other PPPA dismissal cases might not require assessment in the manner suggested by Mr. Warner. This is just simply not one of those cases. [75] I am mindful of the purposes of the PPPA and can see how those purposes may be furthered in some cases by an application judge assessing costs in the manner suggested by Mr. Warner. As he argues, a plaintiff who chooses to use litigation to deter public participation does not need to win the litigation for it to have a negative effect on public participation. A costs assessment before a registrar would take time and perhaps multiple appearances. There may be situations where such a process could have the effective of undermining the purposes of the PPPA by deterring public participation and impeding access to justice. [76] However, as I found in the Reasons, this is not a traditional SLAPP case where one sees a genuinely concerned citizen sued for defamation by a corporate giant in order to intimidate or inflict harm upon him. I found that the allegations against Mr. Warner were not bald accusations and that a trier of fact could find that he was actuated by malice. I ultimately dismissed the action

on the balancing of interests between the plaintiffs' harm and the very high public interest in reporting matters to the police. I think the plaintiffs' point that the parties are evenly matched is a good one. [77] Although I recognize that I am "intimately familiar" with the litigation, I am of the view that the registrar is in the best position to determine if fees billed by Mr. Payne are reasonable. The registrar has extensive knowledge and experience assessing legal bills, as do judges in Ontario. I, on the other hand, do not. [78] The award sought by Mr. Warner is substantial. Natural justice and procedural fairness require that the plaintiffs have an opportunity to test the reasonableness of the award, as in the ordinary case of a full indemnity award, before a registrar. Questions raised by the plaintiffs in their written submissions, such as the reasonableness of the premium rate charged by counsel and the number of billed hours claimed, are questions that cannot, in fairness, be assessed on a summary basis in the manner suggested by Mr. Warner. These issues demonstrate why the registrar, with his or her experience in such matters, ought to conduct the assessment in this case. [79] I have also considered the delay that will be created by referring the matter back to the registrar for an assessment in the ordinary course. Here, Mr. Warner emphasizes that the mandate of

the PPPA is that applications be heard "as soon as practicable" and that this concept must, by logical extension, apply to the resolution of costs. He argues that as the matter is not actually concluded before costs are decided, the oppressive effect of outstanding litigation remains until they are. To require a defendant who has the claim against them dismissed to have to engage in potentially months-long costs proceedings can, he argues, have the effect of undermining the purposes of the PPPA. Plaintiffs with superior resources who are intent on diminishing public participation would, he argues, have little trouble using the registrar proceedings to continue to punish defendants for speaking up in the public interest. [80] This argument raises two questions: (1) What does the phrase "as soon as practicable" mean? and (2) Does the requirement extend to costs proceedings? [81] To answer the first, I must engage in the exercise of statutory interpretation. [82] The phrase "as soon as practicable" is used in two provisions of the PPPA. [83] Subsection 9(3) of the PPPA provides: An application for a dismissal order under section 4 must be heard as soon as practicable. [84] Similarly, s. 10 provides: An appeal of a dismissal order under this Act to the Court of Appeal must be heard as soon as practicable. [85] The legislation does not define this phrase, so I must turn to the

modern approach to statutory interpretation to determine its meaning. As set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para. 21, the phrase "as soon as practicable" must be read "in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". [86] I outlined the object and purposes of the PPPA in the Reasons and summarized them earlier here as well. In short, they are to promote free expression on matters of public interest and discourage litigation that unduly limits this expression. [87] The phrase "as soon as practicable" must also be understood as it exists within the scheme of the PPPA. The timeline for hearing the application or appeal, as specified by ss. 9(3) and 10, must be considered in light of ss. 4 and 5 and the statute's intention to balance public engagement and expression with the protection of one's reputation. [88] As I have noted above, s. 4 of the PPPA creates a pre-trial procedure that allows a defendant in an action to apply to the court for an order dismissing a claim arising out of an expression by the defendant on a matter of public interest. [89] Section 5 of the PPPA provides that once the applicant (defendant) has served an application for a dismissal order on the respondent (plaintiff), no party may take further steps in the proceeding

until the application has been resolved. This includes any appeals from the application. In essence, the litigation is put on hold until the application is resolved. [90] At second reading of the bill to enact this legislation, the Honourable David Eby discussed the litigation hold mandated by s. 5 in these terms: This section 5 is called "No further steps." If you sue someone like this and they bring an application to say, "You are interfering with my free expression. This is matter of public importance. I want the court to determine this under section 4," everything stops on other proceedings that the expression is related to. The reason for that is we want to encourage people to resolve these things really quickly, on both sides, so it's a lot of motivation to ensure it's resolved quickly. Secondly, that it's really serious -- that the defamation is so serious that a person says: "Yes. Heck, yes. We're going to put this thing on hold, and I want to sue this guy for saying that I was improperly interfering with politicians on this." It's a test, really, for a person to make sure that it's worth their while to go through with this. It increases the cost to go to court, in a way that is more than just money, to address the issues of an inequality in resources. It's a significant section of the act. I draw members' attention to that. British Columbia, Legislative Assembly,

Official Report of Debates (Hansard), 41st Parl., 4th Sess., No. 199 (February 14, 2019) at 7032. [91] Where litigation has been commenced to stifle expression and impose costs, the requirement that the application for dismissal must be heard "as soon as practicable" minimizes these costs for the defendant and allows the proceeding to be dismissed on a shorter timeframe. [92] In circumstances where the plaintiff genuinely seeks to protect his or her reputation, the timeline is similarly of assistance. In cases where the proceeding is not ultimately dismissed under s. 4, the party who commenced the litigation, and may have a genuine claim, is left unable to proceed for a period of time. By requiring the application to be heard "as soon as practicable" the application may be disposed of quickly so that the proceeding may resume. [93] In other words, regardless of whether the litigation was brought for an improper purpose, or is a genuine attempt to protect one's reputation, there will be a desire from one side or the other to deal with the application on a short timeframe. [94] Along with the purposes and scheme of the PPPA, the phrase "as soon as practicable" must be read in light of the legislature's intention. While Hansard evidence is not determinative, it may play a role in clarifying legislative intent: Rizzo at para. 35. [95] With respect to the timeline in ss. 9 and 10,

the Hon. David Eby stated: Section 9 talks about the procedure on an application in one of these things. It's in accordance with the existing Supreme Court civil rules, subsection (1). The second is that an application for one of these dismissals can be made at any time in the action after it's been started. Once it's been made, it needs to be heard as quickly as possible. Section 10. One of the problems is: you set this up, and then someone appeals and appeals and appeals. Then the person is in court for years anyway, even though they've been successful in proving that this was an interference with their free expression. So this section is simply a direction to the court that an appeal of a dismissal order under this act must be heard as soon as practicable. This would be something that would be used by someone in court to say: "Look, they're engaging in delay tactics. They don't want to get in court on the appeal. It needs to be heard as soon as possible." The court will step in and address that issue, we hope. [Emphasis added] British Columbia, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 4th Sess., No. 199 (February 14, 2019) at 7032-7033. [96] In this passage, the Hon. D. Eby appears to use the words "practicable" and "possible" interchangeably, but these words, in their ordinary sense, have different meanings. "Practicable" implies that other

considerations may be at play, whereas "possible" imposes a sense of urgency. Black's Law Dictionary (11th ed. 2019) defines "practicable" as "reasonably capable of being accomplished; feasible in a particular situation". [97] Fortunately, the Hon. D. Eby provided clarity on this topic at the committee stage in response to a question about his expectation as to the time period that dismissal applications would be heard under the statute. His answer involved a comparison between the precise timeline (60 days from filing) required by Ontario's legislation and a more flexible "as soon as practicable" timeline for British Columbia's statute. He explained: This is where we actually had an opportunity to learn from Ontario. I understand that in Ontario's act, they have a 60-day timeline. One of the challenges that they've had is that they can't hold to that. What we wanted to avoid was having our registry staff in the courts, or others, be deemed to be violating an act because they're not ensuring that it comes within 60 days, or opening up the opportunity for someone to say: "This whole thing should be dismissed because it didn't come forward within 60 days." To avoid that, the phrase "as soon as practicable" was used, rather than a fixed timeline. Now, some registries in the province with counsel that have available schedules will be able to hear, certainly, within the 60-day

timeline of Ontario, but it's a big province, and there are some registries that have very tight calendars. If you get a couple of busy counsel, it's hard to say when a matter would be heard. This is simply a guideline where, if there is a dispute over setting something down or some kind of an issue like that, counsel can point to this and say: "Look, this needs to happen as soon as practicable." That was the intent of the law, because there is a cost to allowing this to stretch out and out and out. That cost is in relation to free expression, and that is the exact reason why the act was brought forward. We wanted to preserve the intent of the Ontario act in keeping the timelines tight, but we wanted to learn from the Ontario act, as well, and not put our registry staff in a situation where they may be scheduling something that's essentially in breach of the act. So this is what we hope is the happy medium around communicating that we want it to come on quickly and providing the tools to ensure that it can come on quickly, but also recognizing that this is a big province with a lot of diverse registry capacities and also that counsel sometimes have difficulty linking up calendars to get things heard in a certain amount of time. [Emphasis added] British Columbia, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 4th Sess., No. 217 (March 7, 2019) at

7610. [98] From this, it is evident that the legislature did not intend for applications under s. 4 (or appeals) of the PPPA to be heard on an "urgent" basis. Rather, the phrase "as soon as practicable" is meant to impose a sense of haste while taking into account the circumstances. It is also intended to provide the parties with a method for dealing with delay. What may be "practicable" in one case may not be so in another, depending on the capacity of the registry and the availability of counsel. As a result, the timeline must be considered in the context of each case. [99] While it is necessary to interpret the phrase "as soon as practicable" within the context of the PPPA, additional guidance may be obtained from judicial interpretation of the phrase in other contexts. [100] The phrases "as soon as practicable" and "as soon as is practicable" have been considered in the context of other legislation, such as various provisions of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. While the statutory context differs significantly, the case law still provides some guidance in interpreting the meaning of the phrase. [101] For example, in R. v. Flintroy, 2019 BCSC 110, the issue was whether a peace officer filed a report regarding items seized "as soon as is practicable" in accordance with s. 489.1 of the Code. In determining whether the report was filed within the appropriate timeframe, Justice Williams stated at paras. 45 and 47: "As soon as is practicable" means without unreasonable delay: R v. Kift, 2016 ONCA 374 at para.

10. It does not mean "as soon as possible": Eddy, at paras.

52. With respect to the standard to be applied, there must be a reasonable measure of consideration given to the realities of the circumstances. No hard and fast number of days should be set by the court, but the evidence should establish that the officer moved with all reasonable dispatch to file the report in a timely way, given that the authorities make clear that the obligation is an important element of judicial oversight over items that have been items that seized and are being detained by the state. Matters such as the complexity of the investigation, the workload and schedule of the police officer, and the number and nature of items seized may well be relevant to the enquiry. [102] Even taking into account the importance of the requirement, Williams J. found that "as soon as is practicable" does not mean that the report must be filed immediately. Rather, he held that whether the report was filed within the mandated timeframe depends on the circumstances. [103] A similar interpretation is found in the context of the requirement that breathalyzer tests be administered "as soon as practicable" after the time of an alleged impaired driving offence (s. 258(1) of the Code). In R. v. Stevens, 2010 BCSC 1573, Associate Chief Justice MacKenzie, as she then was, stated at para. 16: In addressing whether the breath tests were taken as soon as practicable, the courts in British

Columbia have endorsed Mr. Justice Rosenberg's view of the law in R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489, 208 O.A.C. 379 (C.A.) where he said, at paras. 12-13: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances [citations omitted]. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably [citations omitted]. 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody [citations omitted]. [Emphasis added] [104] Again, the phrase "as soon as practicable" has been

interpreted to mean that the circumstances must be taken into account in determining the timeframe. [105] To conclude, relying on the modern approach to statutory interpretation, I am of the view that the phrase "as soon as practicable", as used in ss. 9(3) and 10, means that an application or appeal under the PPPA must be heard soon in the circumstances. The application (or appeal) must be heard within a reasonable amount of time, considering factors such as the capacity of the registry. [106] Turning to the second question, I am persuaded that this timeliness requirement in the PPPA must logically extend to the resolution of costs. To hold otherwise would be inconsistent with the purposes and overall scheme of the PPPA and run contrary to the intention of the legislature. [107] For this reason, consideration of delay in the resolution of costs does inform the exercise of my discretion in this matter. However, in light of the other factors unique to this case that I have discussed, I find that it does not tip the scale in favour of my assessing costs. There has been some delay in the registrar's proceedings so far. Mr. Hobbs had counsel during the initial proceedings and some delays occurred because of unavailability. The referral back to me and the temporary suspension of regular court operations due to the COVID-19 pandemic caused further unavoidable delays. With these

things now behind us, I am confident the registrar can conduct this assessment soon, within a reasonable amount of time in the circumstances, and I would expect the parties to make themselves available for the earliest hearing dates that are offered. [108] I will conclude with this. Whatever the outcome, I am satisfied that by referring the matter to the registrar to have the award assessed in the ordinary course, the parties can have confidence that they were granted procedural fairness and the outcome will be fair, reasonable and just. "S.A. Donegan J." DONEGAN J.